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On Friday March 12, 2021, Governor Cuomo signed into law legislation which requires that beginning March 12, 2021, all New York employers must provide up to four hours of paid leave per COVID-19 vaccine injection. Below are the salient features of the new law:

Who is covered?

All employees irrespective of employer size or industry.

What amount of leave are employees entitled to?

Up to four hours off per vaccine injection, paid at the employee’s “regular rate of pay.”

The law does not specifically address how much time an employee is entitled to if the vaccine requires two injections, but the law is drafted as permitting leave “per vaccine injection,” thus employees who receive a two shot vaccination could be entitled up to eight hours of paid leave.

When does the law expire?

The requirements became effective on Friday, March 12, 2021 and will expire on December 31, 2022.

Other important features of the law?

Employers cannot deduct the time provided for vaccination leave from any other benefit time, including New York State’s paid sick leave law.

Employers may not retaliate against an employee for exercising their rights to take paid vaccination leave.

Do employers have to post notice of this new law?

At the writing of this post there is no posting requirement.

Final Thoughts

As is the usual case with new legislation, this law is silent on a number of important details for employers. For example, there is no guidance about whether the law will have retroactive effect for employees who were vaccinated prior to March 12, which will undoubtedly be a thorny area for employers whose workforces may be partially vaccinated.

There is also no guidance as to whether employers can ask employees document that they actually received their vaccination. As a gap-filler employers should continue to look to the EEOC’s technical guidance regarding vaccinations, and be careful not to elicit medical information from employees with regard to proof.

Nor is there any guidance as to whether an employer can implement blackout periods, such as during periods of high volumes of work, when employees may not make use of the leave, or how much notice can be required. And, these are just a couple of the open issues.

Our advice: Treat this as any other planned time off. It is reasonable to require employees to seek permission and schedule a time that works with their manager, if that is possible. We have had clients who had employees request time at the “last minute,” because they just snagged a vaccine appointment. While, there should be some common sense requirements for your employees, be reasonable, don’t refuse the time off for no reason.

  • Remember, the more employees who are vaccinated, the sooner your business can resume full operation. So, in the end vaccination is a good thing.

As employers face more questions about implementing COVID-19 vaccination and managing employee issues along the way, continue to consult with employment counsel to ensure your policies and practices comply with the law’s requirements and any future guidance which may be issued.

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